YCS Applications of the New Haven School: Professional Scholarship

by Jessica Karbowski

The second panel of the Yale Young Scholars Conference gave four professors the opportunity to share their reflections on the New Haven School and its application to a range of international legal problems.

REBECCA BRATSPIES

Rebecca Bratspies of the City University of New York presented her paper, Rethinking Decisionmaking in International Environmental Law: A Process-Oriented Approach to Sustainable Development. Bratspies contended that although sustainable development has developed into an important tenant of international environmental law, with global consensus forming around sustainable development as a policy goal, this consensus can break down in the implementation phase. Because sustainable development must be implemented through the adoption of domestic standards, the New Haven School’s emphasis on decision makers acting within a context influenced by community values is instructive, as it highlights the difficulties posed by competing visions of sustainable development.

Bratspies argued that the cost-benefit calculations that societies are willing to make on sustainable development are no longer made on a purely domestic level, but instead are often made as part of the process of “jockeying for influence” among many different decision makers, including international organizations, corporations, and traditional state actors. This process results in influential states working to shape the international conversation in a way that conforms with their own values, as they provide the means for international organizations to accomplish their own interpretations of sustainable development and multilateral treaties.

Finally, although Bratspies applauded the interdisciplinarity of the New Haven School, she cautioned against the illusion that appeals to science automatically create a value-neutral process. She emphasized that while the New Haven School’s commitment to empiricism is a good starting point, science differs from science policy, as the latter involves inherent value judgments in choosing between policy options.

JANET LEVIT

Opinio Juris contributor Janet Levit, of the University of Tulsa, offered her reflections on the New Haven School through her paper, Bottom-up Transnational Lawmaking: Reflections on the New Haven School of International Law. Levit began her talk by emphasizing the similarities between the circumstances in the current international environment and the Cold War realism that was dominant when New Haven School scholars were active. Just as New Haven School scholars scrutinized this realism and attendant legal positivism, Levit’s paper seeks to offer similar criticism of the “neo-conservative, nationalist critique of international law” articulated by Eric Posner and Jack Goldsmith. Levit cited “bottom-up lawmaking”—“a soft, unpredictably organic process that generates hard legal results”—as an alternative to the top-down lawmaking process that Posner and Goldsmith utilize.

Levit attacked three assumptions at the center of the neo-conservative analysis: states as international lawmakers, treaties as the preeminent form of international law, and international law as a deliberate choice that states orchestrate and control. To do this, Levit offered three “vignettes” to illustrate where these assumptions fall short: export subsidies, climate change regulation, and human rights. Through her counter-story on export subsidies, Levit showed that the nationalist account does not accurately describe the formation of international law in this area, and that origins of this law are actually found in a bar between friends instead of in a ministerial meeting between executive actors. Levit pointed to the Bush Administration’s decision not to join the Kyoto Protocol to demonstrate that, although the United States did not enter into this treaty, a parallel process of transnational lawmaking has been working towards achieving goals similar to those enshrined in the treaty. Finally, in the area of human rights, Levit drew attention to the use of the Alien Torts Claims Act in U.S. courts, the United Nations Global Compact, and other examples of corporate social responsibility as powerful counterexamples to the nationalist perception of human right treaties as little more than public relations tools for the Executive branch. This type of lawmaking occurs whether political leaders will it or not; as Levit put it, “International law is not always a matter of deliberate, reflective choice.”

Levit recommended shifting the gaze of international law away from high-level diplomacy in order to take account of the unofficial practices and behaviors of epistemic communities that affect the lawmaking process. While Levit recognized the democratic legitimacy challenges presented by this “bottom up” approach and admitted that this is not necessarily the preferable or desirable approach, she emphasized the approach’s value in revealing the mythological quality of many traditional international law stories. She also saw value in its recognition of a much wider range of decisionmakers and actors.

HARI OSOFSKY

Hari Osofsky, contributor to Opinio Juris and professor at the University of Oregon, presented her paper, A Law and Geography Perspective on the New Haven School. This essay on law and geography is only the first piece in a broader project aiming to increase the contribution of geography to the understanding of international legal problems. Osofsky began by explaining the historical barriers to the interaction of geography with the New Haven School, providing statistics demonstrating the decline in geography programs at major universities following Harvard’s decision in 1948 to eliminate its geography department. Osofsky maintains that the timing of the development of the New Haven School—occurring during the decline of geography as an academic subject at Yale –made the full uptake of geography by the New Haven School unlikely.

Osofsky argued that an engagement with the current geography literature would enhance the internal and external analysis of the New Haven School. The New Haven School used the geographical concept of scale both to articulate that the world is a level of scale worthy of focus, and moreover that global legal processes are multi-scalar. Thus, a theory of community on such a worldwide scale requires an understanding of how the many communities at multiple scales interact with one another. The New Haven School also recognized territorial space, but used a pluralist model in recognizing the traditional nation-state as only one of seven types of participants, number two on their list after human beings. Osofsky also drew attention to the idea of a constitutive arena as a key mechanism for authoritative decision making in the international community. She also highlighted the definitional ambiguities being debated within geography literature and argued that, because many of geography’s central concepts have complex implications that have been explored in the past 30 years, these new ideas could contribute to the New Haven School’s approach to “interpenetrating communities” and authoritative decision making.

Osofsky finished her time with a discussion of the implications of a “deeper geography,” through both the internal process of self-reflection and the external examination of law and policy. Osofsky contended that perspectives gained from this “deeper geography” would allow for further examination of the global version of the concept of human dignity. Osofsky closed by saying that she believes that the study of geography has much to contribute to future New Haven School theorizing, and that such an analysis could influence the development of thought.

MELISSA WATERS

Melissa Waters of Washington and Lee University spoke about her piece, Normativity in the “New” Schools: Assessing the Legitimacy of International Legal Norms Created by Domestic Courts. She first commented that the New Haven School’s early recognition of the international lawmaking processes significantly influenced the transnational legal process school and the transgovernmentalism theories that inform her research. Waters then noted that the locus of controversy for the New Haven School has been the question of whether its value as a normative construct outweighs that of transnational legal process and transgovernmentalism. In order to evaluate the usefulness of transnational legal process and transgovernmentalism as normative constructs, Waters examined the role of transnational judicial dialog among domestic courts—an important venue for the expression of both theories.

Waters noted the importance of this transnational judicial dialog for the process of interaction, interpretation, and internalization of global norms, as well as for the formation of both formal and informal judicial networks. However, Waters highlighted what she called a “thorny concern” that may undermine the normative assumptions of transnational legal process and transgovernmentalism: the international countermajoritarian difficulty. Critics of Supreme Court participation in this dialog claim that the Justices have exacerbated this problem, and have imposed perceived international values on an unwilling polity because they have “removed” the issue from the political process. Waters pointed out the danger that domestic courts may adopt a norm into domestic law before there has been sufficient “buy-in” from other domestic actors.

Finally, Waters invoked John Hart Ely’s defense of courts’ domestic countermajoritarian roles, and the implications of this for transnational legal dialog. Waters argued that this process might still be legitimate if these norms protect discrete and insular minorities. However, Waters warned that we must be prepared for this process to lead judicial dialog in directions that we may not be prepared for, for example in the case of international norms against hate speech, many of which fly in the face of deeply entrenched American free speech norms. Waters eventually concluded that the extent to which one believes that transnational legal dialog is legitimate depends upon how much one trusts judges to “get it right” in their advancement of norms that are both attuned to majority domestic trends, and protective of minority concerns.

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